China Plaintiffs in Milk Case Turn Backs on Custom, Look to US-Style Civil Litigation
Posted Jan 28, 2009 4:58 PM CST
By Rachel M. Zahorsky
As Chinese judges condemned two people to death and three others to life in prison last week in one of the worst food safety scandals in China in decades, more than 200 families of children sickened by tainted milk last August are still waiting to hear if Chinese courts will accept their $5.2 million civil suit.
“You just don’t have a tradition in China of active product liability litigation,” Mayer Brown partner Dan Ring told the ABA Journal. Indeed, the Chinese government is discouraging protest and legal action, instead focusing on brokering settlements between the families and dairy companies.
But the families of poisoned children aren’t backing down. Many are rejecting settlement offers and seeking long-term health care for the victims from the Chinese government and 22 dairy companies. They also want medical research into the illnesses that still afflict tens of thousands of children.
Are Chinese plaintiffs looking at Western jurisprudence, especially supersized damages awarded in the U.S., when refusing to accept initial settlement offers of about $29,200 for the death of a child?
“Absolutely,” said Douglas Tucker, co-chair of Quarles & Brady’s China Law Group and adjunct professor at Chicago-Kent College of Law. “American jurisdiction is having a very large effect on China in these new situations.”
Industrywide accountability has never been sought by a class of plaintiffs in China until this scandal, Tucker says. “This is coming from a Western concept.”
The proof? In prior cases, such as the 2008 earthquake in Sichuan Province, the Chinese government didn’t allow class action and liability suits against the engineers of structures that weren't built to withstand earthquakes. Historically, the Chinese government has always handled these cases as criminal prosecutions, according to Tucker.
However, recent unprecedented international press coverage and increased Internet access has boosted global awareness of Chinese civil rights. Not to mention, each year, thousands of Chinese lawyers come to the U.S. to study U.S. law and civil rights in L.L.M. programs.
These factors may help explain why plaintiffs are emboldened to ask Chinese courts for increased damages and more regulatory control.
“That’s one of the drivers,” says DLA Piper’s Christopher Campbell. Chinese citizens are asking, “If someone in the U.S can get it, why can’t I?”
Fulbright & Jaworski partner Jeff Blount, who manages the firm's Beijing and Hong Kong offices, agrees that although China doesn't have a similar class-action paradigm as the U.S., the Chinese lawyers seeking redress are taking a lesson from the playbook of American jurisprudence.
"A lot more people are becoming aware of their rights," Blount says. "To the extent that some of these people are lawyers too, middle-class, educated, they are looking around the world for legal precedence."
There is more pressure than ever on Chinese government officials to allow these claims into court. But, it remains to be seen whether there is the political and cultural will to develop judiciary and enforcement processes needed to be able to handle mass tort claims.